Balkinization  

Thursday, December 08, 2011

Controversial Copyright Bills Would Violate First Amendment--Letters to Congress by Laurence Tribe and Me

Marvin Ammori

Today, both Professor Laurence Tribe and I submitted letters and legal memoranda to Congress explaining that proposed copyright legislation would violate the First Amendment and be struck down in court. (His letter is available here, and mine is available here.)

Professor Tribe is perhaps the nation's leading constitutional law expert and among its greatest Supreme Court advocates. My expertise is in Internet law, and I research, write on, and litigate issues concerning the 21st Century First Amendment.

We both felt compelled to write because of the threat to freedom of speech from the PROTECT IP Act in the Senate and the Stop Online Piracy Act (or SOPA) in the House.  Others have also come out to oppose the bills, including the leading civil liberties organizations (at home and abroad), venture capitalists, the leading technology platforms from Facebook and Google to Tumblr and Zynga, and (today) hundreds of entrepreneurs. In fact, a million people emailed Congress and well over 90,000 personally called their Members to oppose the bills, many during a coordinated "American Censorship Day" inspired by the bills' free speech burdens, a day organized by Fight for the Future, Demand Progress, Electronic Frontier Foundation, Public Knowledge, and Mozilla, among others. Over 90 law professors have also come out against the Senate version and even more against the House version.

The bills are not limited; they're sledgehammers not scalpels.

They do not, as often advertised by the copyright industry, merely target foreign "rogue" sites like the Pirate Bay. They are not even limited to sites guilty of any copyright infringement, direct or even contributory infringement. Instead, the bills would extend not only to foreign but also to domestic websites that merely "facilitate" or "enable" infringement.  Thus, in their language, the bills target considerable protected speech on legitimate sites such as YouTube, Twitter, and Facebook.  The bills also affect non-infringing speech by search engines, advertisers, and domain name providers.

Coupled with this overbroad scope, the bills authorize remedies that lack the usual procedural safeguards, ensuring that even more protected, non-infringing speech will be restricted. Even though a judicial determination is generally required to remove speech from circulation, the House version empowers copyright-holders to send notices to payment processors and advertisers to shut off funding for non-infringing sites that meet the bill's broad definitions. The bills also encourage over-enforcement by making companies immune from suit for mistakenly punishing sites outside even the bills' over-expansive scope.

My letter addresses the threshold question of why standard First Amendment scrutiny applies to these bills. Some suggest that the bills should get a constitutional pass because they merely suppress copyright infringement, and copyright statutes generally receive relaxed scrutiny under the First Amendment. But, as noted above, these bills target considerable speech by speakers who are engaging in no direct or indirect infringement, from websites "enabling" infringement to advertisers engaged in truthful, non-infringing commercial speech and search engines delivering results. Because these bills restrict considerable protected non-infringing speech, several different doctrines would trigger standard First Amendment scrutiny. These doctrines include the Supreme Court's doctrines of overbreadth, vagueness, and prior restraint, as well as its decisions in United States v. Stevens and  Eldred v. Ashcroft.  Standard First Amendment scrutiny, not any standard applicable to copyright infringement, would logically apply for restrictions on non-infringing, protected speech by search engines, domain name providers, and advertisers. Under standard First Amendment scrutiny, both PROTECT IP and SOPA are clearly unconstitutional in restricting these categories of protected speech.

Professor Tribe's letter reaches the same conclusion, focusing on the House version of the bill, SOPA, and focusing on the application of standard First Amendment principles, rather than my letter's focus on justifying these principles' application. His analysis concludes that portions of the bill are unconstitutional as prior restraints, as unconstitutionally vague, and for not being narrowly tailored to a compelling or important interest as required to pass the heightened scrutiny applicable to speech restrictions. Professor Tribe also responds to the arguments provided by Floyd Abrams that SOPA is not an unconstitutional prior restraint; he explains that Mr. Abrams's own analysis provides evidence that SOPA's provisions are in fact unconstitutional. (Abrams' clients are copyright companies; Tribe's are consumer electronics companies; mine are tech companies.)

Professor Tribe and I make some overlapping arguments, even without coordination or planning, because the House and Senate bills so evidently violate core principles of First Amendment doctrine--overbreadth, vagueness, prior restraint and others.

Civil liberties organizations describe the bills as encouraging "American censorship," a weighty charge; the legal analysis by Professor Tribe and I support that conclusion. At least, according to the American Supreme Court's established First Amendment jurisprudence.

Congress does not need to pass bills sure to be struck down after years of litigation, uncertainty, and millions of taxpayer dollars wasted in fruitless litigation. Congress need not send a message to the Internet that it seeks to censor the web.

Congress can, in fact, remedy the bills by narrowing them to conform to constitutional limits. As both Professor Tribe and I suggest, Congress should begin by focusing its bills on actual infringement, rather than on speech far beyond infringement. And Congress should ensure adversary judicial proceedings before the silencing of speech available to Americans.

I provide greater detail  in the last few pages of my memorandum on the particular steps Congress should take to narrow the bills enough to survive First Amendment scrutiny--steps that can preserve freedom of speech for the future users and creators on the Internet.

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